Citation Nr: 1745520 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 11-21 082A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 10 percent for traumatic brain injury (TBI). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Larry D. Schuh, Esq. WITNESSES AT HEARING ON APPEAL Appellant and wife ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1956 to September 1958. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2013, a Travel Board hearing was held before the undersigned, and a transcript of the hearing is in the record. In December 2013 and August 2015, the Board remanded the matters for additional development. A February 2015 rating decision granted service connection for headaches, rated 0 percent (separately from TBI), effective September 28, 2010. That decision has not been appealed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's TBI is manifested by mild impairment of memory, attention, concentration, and executive functions; and subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other social relationships; it is not manifested by a level of impairment of "2" or higher in any facet of cognitive impairment or other residuals of TBI not otherwise specified. 2. The Veteran's service-connected disabilities (TBI, rated 10 percent; tinnitus, rated 10 percent; and headaches, rated 0 percent) are rated 20 percent combined, and are not shown to be of such nature and severity as to render him unable to secure and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for TBI is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.124a, Diagnostic Code 8045 (2016). 2. The schedular requirements for a TDIU rating are not met, and a TDIU rating is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A December 2011 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating, and a December 2016 supplemental SOC (SSOC) readjudicated the matters after the Veteran had the opportunity to respond. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). Neither the Veteran nor his attorney has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). A deficiency under Bryant v. Shinseki, 23 Vet. App. 488 (2010), is not alleged (see Dickens and Scott). A review of the record reveals that there has been substantial compliance with the Board's remand instructions. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. TBI Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Under Code 8045 there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is to be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified". Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified". However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table. Emotional/behavioral dysfunction is evaluated under 38 C.F.R. § 4.130 (Schedule of ratings - mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified". Physical (including neurological) dysfunction is evaluated based on the following list, under an appropriate code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. Residuals not listed in 38 C.F.R. § 4.124a, Code 8045 that are reported on an examination, are to be evaluated under the most appropriate code. Each condition is to be evaluated separately(as long as the same signs and symptoms are not used to support more than one evaluation), and the evaluations for each separately rated condition are combined under 38 C.F.R. § 4.25. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total". However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total", since any level of impaired consciousness would be totally disabling. A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total", the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. Notes following include: (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "activities of daily living", which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. (4): The terms "mild", "moderate", and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. On December 2010 VA examination, the Veteran reported having multiple episodes of total vision loss for several seconds with no tongue biting or urinary incontinence. He reported intermittent headaches described as annoying and not severe, located in the frontal region, occurring once to four times per week, and lasting for several hours with no vomiting. He reported that the headaches had continued over the years and had not changed in presentation, and there were no associated neurological abnormalities. He took over-the-counter medication which alleviated the headaches. He reported several episodes of sleep disturbance when over the last several years, his wife had awakened him because he was "boxing with somebody". He reported feeling depressed for the last several years because he was not working. There was no history of dizziness, vertigo, seizures, balance or coordination problems, autonomic dysfunction, numbness, paresthesias or other sensory changes, weakness or paralysis, mobility or ambulatory problems, fatigue, malaise, memory impairment, other cognitive symptoms, neurobehavioral change, bowel or bladder problems, erectile dysfunction, hearing loss or tinnitus, speech or swallowing difficulty, decreased sense of taste or smell, endocrine dysfunction, or cranial nerve dysfunction. On physical examination, detailed reflex testing, sensory testing, and detailed motor testing were normal. There was no cognitive impairment. A January 1985 CAT scan of the brain was noted to have been normal. On July 2011 VA treatment, the Veteran reported chronic headaches described as annoying, intermittent, occurring every 2 to 3 days, and lasting from one hour to 2 to 3 days. He reported that the symptoms begin with watery eyes and progress to headaches with a pain level of 5 to 6; he took Tylenol with some relief. On January 2012 private treatment, the Veteran reported having headaches every few days, 2 to 3 out of 10 in severity. He reported a REM behavior disorder of sleep in which he talked about his dreams and flailed his limbs. The impressions included chronic very mild frequent headaches after a concussion in service many years ago, and REM behavior disorder of sleep with no evidence of Parkinson's disease. He was prescribed Clonazepam, which totally eliminated the REM behavior disorder of sleep. On October 2012 VA TBI examination, the Veteran reported intermittent headaches since service. He had no complaints of impairment of memory, attention, concentration, or executive functions. His judgment was normal. His social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. His motor activity was normal. His visual spatial orientation was normal. He reported subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family or other close relationships, including mild or occasional headaches, and mild anxiety. He had no neurobehavioral effects. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. His consciousness was normal. No neuropsychological testing was performed. The examiner noted that on the day of the trauma (May 1957) while being evaluated, the Veteran had a petit mal seizure but reported that he had been having them for about 4 months prior to the incident without any history of any previous trauma; it was later noted that these episodes were more of a functional nature and did not require further investigation. On October 2012 VA headaches examination, the diagnoses included migraine including migraine variants, and posttraumatic headaches. The Veteran reported having chronic headaches since the trauma in service, described as an intermittent generalized dull headache, lasting between 5 minutes and several hours, decreased with over-the-counter medication, occurring at least several times per week with no associated factors, not increased with activity, and with no associated sensory changes. He reported that the previous year he had also developed a second type of headache located in the right temporal region, for which pain medication was prescribed. The new headaches were described as sharp, lasting several hours to all day, not affected by activity, and occurring daily. Symptoms included pain on both sides of the head but did not include nausea, vomiting, sensitivity to light or sound, changes in vision, or sensory changes. The typical head pain lasted for less than 1 day. He reported characteristic prostrating attacks of migraine headache pain occurring more frequently than once per month, and very frequent prostrating and prolonged attacks of migraine headache pain. He did not report prostrating attacks of non-migraine headache pain, or very frequent prostrating and prolonged attacks of non-migraine headache pain. At the October 2013 Board hearing, the Veteran testified that he has mild to moderate headaches every day or every other day, and severe headaches two to three times per month. He testified that his headaches have not changed over the years. He testified that he experiences irritability and lack of concentration. On January 2015 VA TBI examination, the Veteran reported that, since the previous TBI evaluation, he no longer had the second described type of headache; he only had the persistent headaches since the injury in service. He had no complaints of impairment of memory, attention, concentration, or executive functions. He had normal judgment. His social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. His motor activity was normal. His visual spatial orientation was normal. He had three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships. The subjective symptoms included headaches described as limiting his activities significantly because of the pain, and anxiety. There were no neurobehavioral effects. The Veteran was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. His consciousness was normal. Neuropsychological testing was not performed. The Veteran reported having an MRI performed at a non-VA facility, and it was normal. On January 2015 VA headaches examination, the Veteran reported no change in the pattern of his posttraumatic headaches since 1958. He reported having headaches multiple times per day, from twice to seven times per week, that interfered with activities. His medications included tramadol and hydrocodone/acetaminophen. Symptoms included headache pain localized to one side of the head and numbness in the face with headaches. The typical head pain had duration of less than one day and was located on the right side of the head. He did not have characteristic prostrating attacks of migraine or non-migraine headache pain. On November 2015 VA treatment, the Veteran reported having headaches daily or every other day. The headaches typically began in the right frontotemporal region and verged into the parietal region and the retro-orbital space. He described the pain as dull and denied a specific throbbing component. He reported that the headaches typically last minutes to hours. He reported photophobia with the headaches but not phonophobia. There was no change in the headache on exposure to strong odors, and he denied olfactory triggers. He did not experience nausea or vomiting with the headaches. He denied symptoms associated with the headaches consistent with scotoma or any focal neurological features. He took over- the-counter pain medication. The impression was headaches consistent with transformed migraine/chronic daily headaches. On June 2016 VA TBI examination, the Veteran reported that he has had chronic annoying headaches since a head injury in service. He reported that the longest he has ever gone without a headache is four days. He reported symptoms including frequent dull headaches; at times the pain is fleeting, at other times it lasts for hours, and sometimes it lasts all day. He reported that when the headache is long lasting, he is irritable. He complained of tinnitus and reported that blurred vision began a couple of months earlier. He took prescribed hydrocodone for pain and ibuprofen as needed. He reported mild memory loss (such as having difficulty following a conversation, recalling the conversation, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. He complained of impaired attention, concentration and mild memory loss; the symptoms were all subjective. His judgment was normal. His social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. His motor activity was normal. His visual spatial orientation was normal. He reported subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family or other close relationships. He reported his chronic frequent headaches interfere with activities of daily living by making him irritable, and he reported his frustration tolerance was decreased, secondary to headaches. He reported one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. His consciousness was normal. The Veteran reported that a July 2013 MRI was normal. A Montreal Cognitive Assessment was conducted and the Veteran's score was 26/30 (in the normal range). The examiner noted the Veteran's history of stable employment and his ability to maintain relationships and function adequately. The examiner noted the Veteran's report of mild memory loss, attention and concentration difficulties although there is no objective evidence to substantiate those claims. On June 2016 VA headaches examination, the diagnoses included migraine including migraine variants, posttraumatic headaches, and cervicogenic headaches. The Veteran reported that his current symptoms remained the same; the headaches were annoying and occurred 3 to 6 times per day, sometimes very briefly. He took hydrocodone on occasion and ibuprofen. He reported that he did not have migraine headaches, and the examiner opined that the assessment supported his statement. Symptoms included annoying, dull pain, localized to one side of the head. He did not experience non-headache symptoms associated with headaches. The duration of typical head pain lasted less than one day, and the location was on the right side of the head. The Veteran did not have characteristic prostrating attacks of migraine headache pain, very frequent prostrating and prolonged attacks of migraine or non-migraine headache pain, or prostrating attacks of non-migraine headache pain. The examiner noted that posttraumatic headache was diagnosed in July 2011 and migraine headache in October 2012. The examiner noted the Veteran's report that he does not have migraine headaches or any non-headache symptoms associated with migraine headaches. The examiner noted that on 2013 neurology treatment, the opinion was that the newer-onset headache was cervicogenic in nature due to the 2012 c-spine MRI that showed arthritic changes. Based on a review of all of the records, history, and examination, the examiner opined that the Veteran's chronic headaches are from the 1957 injury in service and the newer onset headaches were due to the cervical spine issues. Additional VA treatment records reflect symptomatology largely similar to that shown on the examinations described above. As is noted above, service connection has been established for headaches secondary to TBI (and the rating for the headaches is not at issue herein). The preponderance of the competent (medical) evidence is against a finding that the Veteran has more than mild cognitive impairment as a residual of TBI. While he has reported some problems with memory, concentration, attention, and executive functions, there is no objective evidence on testing of the mild impairment of memory, attention, concentration or executive functions, resulting in any functional impairment. He has not reported problems with goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, or flexibility in changing action. The Veteran's subjective TBI residual symptoms are consistently reported on VA examinations (described above) as daily mild to moderate headaches (which are separately rated), irritability and anxiety. He has not reported motor or sensory dysfunction, loss of sense of smell and taste; seizures; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; or endocrine dysfunctions. Therefore, additional separate ratings for residuals of TBI are not warranted. The Veteran's TBI is rated 10 percent, on the basis that the greatest number assigned to any facet of TBI impairment is 1. At its most severe (non-including the separately rated headaches), the Veteran's RBI disability manifests in mild impairment of memory, attention, concentration, and executive functioning (but without objective evidence of impairment on testing); and subjective symptoms that mildly interfere with, but do not prevent, work or engaging in social activities. The level of severity of each of these facets warrants a 1, under the table for evaluating residuals of TBI. 38 C.F.R. § 4.124a, Code 8045. There is no evidence or allegation that the TBI manifests in impaired judgment (judgment has consistently been normal on examination); inappropriate social interaction (such interaction has consistently been reported as normal on examination); disorientation (the Veteran is always oriented to all spheres); impaired motor activity (none reported); impaired visual spatial orientation (none reported); neurobehavioral effects that interfere with workplace or social interaction (none reported); impaired communication (communication has consistently been normal on examination); or impaired consciousness. The level of severity of each of these facets warrants a 0, as designated by the table for evaluating residuals of TBI. The table specifies that the rating assigned shall reflect the highest number assigned for any factor. The numbers are not added. A 1 level of severity warrants a 10 percent rating. In light of the above, the Board finds that a rating in excess of 10 percent for the Veteran's residuals TBI is not warranted. The Board has considered the Veteran's subjective complaints regarding his symptoms. However, his headaches are rated separately, and the other manifestations do not support that additional separate or higher ratings are warranted. The Board also notes the lay statements submitted by the Veteran in support of this claim. Those statements detail the types of problems that result from his TBI symptoms The levels of functioning impairment described by the Veteran are encompassed by the criteria for the 10 percent rating assigned; they do not support the assignment of a higher schedular rating at any time. TDIU A TDIU may be assigned when the veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities (without regard to age). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), "marginal employment shall not be considered substantially gainful employment." In Moore, 1 Vet. App. at 359, the Court discussed the meaning of "substantially gainful employment". The Court noted the following standard announced by the United States Court of Appeals for the Federal Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities: TBI, rated 10 percent; tinnitus, rated 10 percent; and headaches, rated 0 percent. The 20 percent combined rating does not meet the 38 C.F.R. § 4.16(a) schedular rating requirements for a TDIU rating. Accordingly, the analysis must turn to whether the Veteran's service-connected disabilities nonetheless render him unemployable, requiring that the case be referred to the VA Compensation Service Director for consideration of an extraschedular TDIU rating. On December 2010 VA examination, the Veteran reported that in 2002 he had retired from being a police officer and that the retirement was for medical reasons (physical problems) and secondary to a motor vehicle accident. The examiner opined that the effect of the Veteran's TBI on his usual occupation and resulting work problem was headache pain. On October 2012 VA TBI examination, the examiner opined that the Veteran's residual conditions attributable to TBI do not impact his ability to work. On October 2012 VA headaches examination, the examiner opined that the Veteran's headache condition impacts his ability to work, noting the complaint of a new onset of headache that had been present for the previous year that appeared to be prostrating. The examiner opined, however, that this did not appear to be related to TBI as it was new in onset as compared to the trauma that occurred 50 years earlier. The examiner noted the Veteran's report that he retired in 2004 because of bad knees. On January 2015 VA TBI and headaches examinations, the examiner opined that the Veteran's residual conditions attributable to a TBI and his headache condition do not impact his ability to work. On June 2016 VA TBI examination, the examiner opined that the Veteran's symptoms of reported TBI do not affect his employment, noting that there were no emotional/behavioral signs or symptoms, there was no history of behavioral health treatment, and there were no disturbances of language, memory, or executive functioning. On June 2016 VA headaches examination, the examiner noted the Veteran's report that the headaches do not interfere with his ability to work, and that he was alert and oriented and answered all questions appropriately. The examiner opined that the Veteran's headaches would not prevent him from working. The Veteran has also submitted lay statements from family members who noted the Veteran's issues due to TBI and headaches. The evidence of record does not support that the Veteran's service connected disabilities are of such nature and severity as to preclude his participation in substantially gainful employment, and warrant referral for consideration of an extra-schedular TDIU rating under 38 C.F.R. § 3.321(b); 4.16(b). There is nothing in the record that suggests that his service connected disabilities alone (not considering his nonservice-connected disabilities) would preclude his participation in any form of occupation. He does not have service connected disabilities that result in any substantial physical limitations or that cause mental impairment; VA examiners have found him capable of employment. The Board has considered the Court's guidance in Bowling v. Principi, 15 Vet. App. 1 (2001). However, the facts in this case are distinguishable from Bowling. In Bowling, according to the Court, there was a plausible basis in the record for a conclusion that the veteran was unable to secure and follow a substantially gainful occupation due to a service connected disability. Here, unlike Bowling, the Veteran has not submitted supporting evidence of unemployability based on his service connected disabilities alone (without regard to other non-service-connected disabilities, age, and/or the employment market). The Board has considered the Veteran's statements in support of this appeal, and has no doubt that his overall medical condition results in substantial occupational impairment. However, the effects of his nonservice-connected disabilities and his age are not for consideration. The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities, alone, prevent him from participating in regular substantially gainful employment. ORDER A rating in excess of 10 percent for TBI is denied. The appeal seeking a TDIU rating is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs